Exhibit 1.1
UNDERWRITING AGREEMENT
U.S.$[*]
WESTPAC SECURITIES ADMINISTRATION LIMITED
SERIES [*]WST TRUST
U.S.$ Class[*] Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
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[*]
Ladies and Gentlemen:
Westpac Securities Administration Limited (ABN 77 000 049 472), a limited
liability public company under the Corporations Xxx 0000 of the Commonwealth of
Australia ("WSAL") in its capacity as trustee of the Series [*]WST Trust (the
"Issuer Trustee") proposes to sell to the several Underwriters listed in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), U.S.$[*] principal amount of Class [*]
Mortgage Backed Floating Rate Notes (the "Notes" or the "Class [*] Notes")
issued by the Series [*]WST Trust (the "Trust"). Each Note will be secured by
the assets of the Trust. The assets of the Trust include, among other things, a
pool of variable and fixed rate residential housing loans (the "Housing Loans")
originated or acquired by Westpac Banking Corporation (ABN 33 007 457 141)
("Westpac") including all monies at any time paid or payable thereon or in
respect thereof from, on and after [*](the "Cut-Off Date") with respect to
payments of principal and after the Closing Date (as defined herein) with
respect to payments of interest, rights under certain insurance policies with
respect to the Housing Loans, the collection account relating to the Trust and
the rights of the Issuer Trustee under the Basic Documents. The Series [*] WST
Trust will be created pursuant to the Master Trust Deed, dated February 14, 1997
(the "Master Trust Deed") between the Issuer Trustee and The Mortgage Company
Pty Limited (ABN 86 070 968 302) and a series notice, to be dated [*] (the
"Series Notice"), between the Issuer Trustee and Westpac Securitisation
Management Pty Limited (ABN 73 000 000 000) (the "Trust Manager"), which sets
forth specific provisions regarding the Trust and details the provisions of the
Notes. The Note Trust Deed, dated [*] (the "Note Trust Deed") by and among the
Issuer Trustee, the Trust Manager and [*] (the "Note Trustee") provides for the
issuance and registration of the Notes in accordance with the terms and
conditions attached thereto. Westpac will act as servicer (the "Servicer") of
the Housing Loans. The Trust Manager and Westpac (except in its capacity as
Servicer) are each a "Westpac Party" and collectively are referred to herein as
the "Westpac Parties." The Notes are described in the Base Prospectus and
Prospectus Supplement (hereinafter collectively, the "Prospectus"), which the
Trust Manager has furnished to the Underwriters.
When used in this Agreement, "Basic Documents" shall mean the Master Trust
Deed, the Series Notice, the Servicing Agreement, the Notes, the Security Trust
Deed, the Note Trust Deed, the Swap Agreements, the Agency Agreement and [any
other specified document relevant to the transaction]. To the extent not defined
herein, capitalized terms used herein have the meanings assigned to such terms
in the Series Notice and the Master Trust Deed.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Series [*] WST Trust only, and
in no other capacity. Any reference to the assets, business, property or
undertaking of the Issuer Trustee is a reference to the Issuer Trustee in that
capacity only.
The Westpac Parties and the Issuer Trustee hereby agree with the
Underwriters as follows:
1. Offering.
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The Westpac Parties and the Issuer Trustee understand that the Underwriters
intend (i) to make a public offering of their respective portions of the Notes
as soon after the parties hereto have executed and delivered this Agreement as
in the judgment of the Representatives is advisable and (ii) initially to offer
the Notes upon the terms set forth in the Prospectus, and in compliance with all
applicable laws and regulations.
2. Purchase and Sale.
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Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Issuer Trustee, at the
direction of the Trust Manager, agrees to sell the Notes to the several
Underwriters as hereinafter provided, and each Underwriter agrees to purchase
the Notes, severally and not jointly, from the Issuer Trustee the respective
principal amount of Notes set forth opposite such Underwriter's name in Schedule
I hereto at a price equal to [ ] of the principal amount of each Class of Notes.
In connection with such purchase, Westpac will pay in immediately available
funds to the Underwriters the commissions payable under the letter agreement
relating to fees and expenses among Westpac and the Representatives (a copy of
which is attached hereto as an exhibit).
3. Delivery and Payment.
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Payment for the Notes shall be made by wire transfer in immediately
available funds to the account specified by the Issuer Trustee to the
Representatives no later than noon on [*], or at such other time on the same or
such other date, not later than the fifth Business Day thereafter, as the
Representatives and the Trust Manager may agree upon in writing.
Payment for the Notes shall be made against delivery to the nominee of The
Depository Trust Company ("DTC") for the account of the Representatives of one
or more book-entry notes (the "Book-Entry Notes") representing the Notes, with
any transfer taxes payable in connection with the transfer to the Underwriters
of the Notes duly paid by the Issuer Trustee. The Book-Entry Notes will be made
available for inspection by the Representatives at the office of Xxxxx, Xxxxx &
Xxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date. As used herein
the term "Business Day"
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means any day other than a day on which banks are permitted or required to be
closed in New York City, and the term "Closing Date" means [*].
4. Representations and Warranties of the Westpac Parties and the Issuer Trustee.
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(a) The Issuer Trustee represents and warrants to each Underwriter that:
(i) since [*] (the date (Australian Eastern Standard Time) of the last
due diligence call) there has been no material adverse change in the condition
(financial or otherwise) of the Issuer Trustee except as disclosed in the
Prospectus, which is material in the context of the Issuer Trustee performing
its obligations and duties under the Notes and each Basic Document to which it
is or is to be a party;
(ii) Issuer Trustee is a corporation duly incorporated and existing
under the laws of New South Wales; it is lawfully qualified and holds all
Authorisations (as defined in the Master Trust Deed) necessary to carry on its
business as described in the Prospectus and to issue the Notes and to act as
required by each Basic Document to which it is or is to be a party and by law to
comply with the requirements of any legislation and subordinate legislation
(including, without limitation and to the extent relevant, any Consumer Credit
Legislation (as defined in the Master Trust Deed)) and no other thing is
required to be done (including without limitation the making of any filing or
registration) in order to issue the Notes or to execute and act as required by
each Basic Document to which it is to be a party;
(iii) this Agreement has been duly authorized, executed and delivered
by the Issuer Trustee. The Note Trust Deed will have been duly qualified under
the Trust Indenture Act of 1939;
(iv) the Notes have been duly authorized, and, when issued, delivered
and paid for pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Issuer Trustee, entitled to the benefits provided by the Note
Trust Deed and the Security Trust Deed, subject to general principles affecting
creditors rights and general principles of equity. Each Basic Documents to which
it is a party has been duly authorized, and, when executed and delivered by the
Issuer Trustee and, each of the other parties thereto, each Basic Document to
which it is a party will constitute a legal, valid and binding obligation of the
Issuer Trustee, enforceable against the Issuer Trustee in accordance with its
terms, subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors rights generally and to general equitable
principles;
(v) Issuer Trustee is not, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, its Constitution or
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Issuer Trustee is a party or by which it or any of its
properties is bound, except for violations and defaults which individually and
in the aggregate would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of the Notes
and the performance by the
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Issuer Trustee of all of the provisions of its obligations under the Notes, the
Basic Documents to which it is a party and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Issuer Trustee is a party or by which the
Issuer Trustee is bound or to which any of the property or assets of the Trust
is subject, nor will any such action result in any violation of the provisions
of the Constitution of the Issuer Trustee or any applicable law or statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Issuer Trustee, or any of its properties; and, to the
knowledge of the Issuer Trustee, no consent, approval, authorization, order,
license, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Notes or the
consummation by the Issuer Trustee of the transactions contemplated by this
Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have been
obtained under the Securities Act, the Trust Indenture Act and as may be
required under state securities or "Blue Sky" laws in connection with the
purchase and distribution of the Notes by the Underwriters;
(vi) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Issuer Trustee, threatened against or
affecting the Issuer Trustee or the Trust or, to which the Issuer Trustee is or
may be a party or to which the Issuer Trustee or any property of the Trust is or
may be the subject, (a) asserting the invalidity of this Agreement or of any of
the Basic Documents in relation to the Issuer Trustee, (b) seeking to prevent
the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents by the Issuer
Trustee, (c) that may adversely affect the federal or state income, excise,
franchise or similar tax attributes of the Notes, (d) that could materially and
adversely affect the performance of the Issuer Trustee of its obligations under,
or the validity or enforceability of, this Agreement or any of the Basic
Documents by the Issuer Trustee or (e) which could individually or in the
aggregate reasonably be expected to have a material adverse effect on the
interests of the holders of the Notes or the marketability of the Notes;
(vii) the representations and warranties of the Issuer Trustee
contained in the Basic Documents to which it is a party are true and correct in
all material respects;
(viii) [*] are independent public accountants with respect to the
Issuer Trustee within the meaning of the Securities Act;
(ix) to the Issuer Trustee's knowledge, no event has occurred which
would entitle the Trust Manager to direct the Issuer Trustee to retire as
trustee of the Trust under clause 24 of the Master Trust Deed;
(x) [the Prospectus complies with the Listing Rules of the [*] (the "
[*]"), and the Prospectus ( as of the date hereof (a) contains all the
information required by section[*]; and (b) in the context of the issue of the
Notes to be issued to persons other than residents of the United States of
America, is accurate in all material respects and does not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the information therein, in
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the light of the circumstances under which it is given, not misleading and all
reasonable inquiries have been made to ascertain the accuracy of all such
information.];
(xi) the Issuer Trustee has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against the Issuer Trustee for its
winding-up, dissolution or reorganization or for the appointment of a receiver,
receiver and manager, administrator, provisional liquidator or similar officer
of it or of any or all of its assets;
(xii) subject to compliance with Section 128F of the Income Tax
Assessment Xxx 0000 of Australia (the "Tax Act") and compliance by the
Underwriters with clause 12 hereto, no stamp or other duty is assessable or
payable in, and no withholding or deduction for any taxes, duties, assessments
or governmental charges of whatever nature is imposed or made for or on account
of any income, registration, transfer or turnover taxes, customs or other duties
or taxes of any kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein or thereof
having power to tax in such jurisdiction, in connection with the authorization,
execution or delivery of the agreements to which it is to be a party or with the
authorization, execution, issue, sale or delivery of the Notes and the
performance of the Issuer Trustee's obligations under the agreements to which it
is to be a party and the Notes;
(xiii) the Notes and the obligations of the Issuer Trustee under the
Note Trust Deed will be secured (pursuant to the Security Trust Deed) by a first
floating charge over the assets of the Trust; and
(xiv) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute an Event of Default under the Security Trust Deed.
(b) The Trust Manager represents and warrants to each Underwriter that:
(i) A Registration Statement for the registration of Mortgage Backed
Notes (issuable in series), including the Notes, on Form S-3
(No. 333-32944) has (a) been prepared by the Trust Manager in
conformity with the requirements of the Securities Act of 1933
(the "Securities Act") and the rules and regulations (the "Rules
and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (b) been filed with the
Commission under the Securities Act and (c) become effective
under the Securities Act. Copies of such Registration Statement
have been delivered by the Trust Manager to the Underwriters. As
used in this Agreement, "Effective Time" means the date and the
time as of which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective
by the Commission; "Effective Date" means the date of the
Effective Time; "Registration Statement" means such registration
statement, at the Effective Time, including any documents
incorporated by reference therein at such time; and "Prospectus"
means such final prospectus dated _____, ____, as first
supplemented by a prospectus supplement, relating to the Notes,
as first filed with
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the Commission pursuant to paragraph (1),(2), (3), (4) or (5) of
Rule 424(b) of the Rules and Regulations [and any diskette
attached to the Prospectus is hereinafter called the "Diskette"].
Reference made herein to the Prospectus shall be deemed to refer
to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of
the date of the Prospectus, and any reference to any amendment or
supplement to the prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of
1934 (the "Exchange Act") after the date of the Prospectus and
incorporated by reference in the Prospectus, and any reference to
any amendment or supplement to the Registration Statement shall
be deemed to include any report filed with the Commission with
respect to the Trust Manager pursuant to Section 13(a) or 15(d)
of the Exchange Act after the date of the Prospectus that is
incorporated by reference in the Registration Statement. There
are no contracts or documents of the Trust Manager which are
required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and Regulations which
have not been so filed or incorporated by reference therein on or
prior to the Effective Date of the Registration Statement. As
interpreted by the SEC, the conditions for use of Form S-3 as set
forth in the General Instructions thereto have been satisfied;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Trust Manager,
threatened by the Commission; and the Registration Statement and
Prospectus [and any Diskette] (as amended or supplemented if the
Trust Manager shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act")
and do not and will not, as of the Effective Date as to the
Registration Statement and any amendment thereto and as of the
date of the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus,
as amended or supplemented, if, at the Closing Date will not
contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; except that the foregoing representations and
warranties shall not apply to: (a) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Note Trustee under the Trust
Indenture Act; (b) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Trust Manager in writing by such Underwriter through the
Representatives expressly for use therein; (c) information
(except as to any information or materials provided by a Westpac
Party to produce such information) under the heading "Prepayment
and Yield Considerations" in the Prospectus [and (d) any
information in any Computational
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Materials or ABS Term Sheets (each as hereinafter defined)
(except as to any information or materials provided by a
Westpac Party to produce such information) required to be
provided by the Underwriters to the Company pursuant to
Section ___;] [ or to the extent appropriate; (e) the Term
Sheet Diskette or the Diskette to the extent that the
information set forth in the Diskette is different than the
information set forth in Appendix A to the Prospectus
Supplement or the information set forth in the Term Sheet
Diskette is different than the information set forth in the
Term Sheet Master Tape];
(iii) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the
Commission , as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become
effective or are filed with the Commission, as the case may
be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to
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information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Trust
Manager in writing by the Underwriters expressly for use
therein;
(iv) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has
not been any material adverse change, or any development
involving a prospective material adverse change, in or
affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or
results of operations of the Trust Manager, taken as a
whole, otherwise than as set forth or contemplated in the
Prospectus, as supplemented or amended as of the Closing
Date;
(v) the Trust Manager is a corporation duly incorporated and
validly existing under the Corporations Xxx 0000 of the
Commonwealth of Australia, the Trust Manager has the power
and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this
Agreement and the Basic Documents to which it is or is to
be a party and carry out the transactions contemplated by
such Basic Documents; the Trust Manager has been duly
qualified or licensed for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification
or licensing, other than where the failure to be so
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qualified or licensed or in good standing would not have a
material adverse effect on the transactions contemplated
herein or in the Basic Documents;
(vi) this Agreement has been duly authorized, executed and
delivered by the Trust Manager;
(vii) each of the Basic Documents to which it is a party has been
duly authorized by the Trust Manager, and, when executed
and delivered by the Trust Manager and each of the other
parties thereto, each of the Basic Documents to which it is
a party will constitute a legal, valid and binding
obligation of the Trust Manager, enforceable against the
Trust Manager in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation
or other similar laws affecting the enforcement of
creditors rights generally and to general equitable
principles;
(viii) The Notes and the Basic Documents each will conform to the
descriptions thereof in the Prospectus;
(ix) the Trust Manager is not, nor with the giving of notice or
lapse of time or both would be, in violation of or in
default under, its Constitution or any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of
its properties is bound, except for violations and defaults
which individually and in the aggregate would not have a
material adverse effect on the transactions contemplated
herein or in the Basic Documents; the performance by the
Trust Manager of all of the provisions of its obligations
under the Basic Documents to which it is a party and this
Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result
in a breach of any of the terms or provisions of, or
constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Trust Manager is a party or by
which the Trust Manager is bound or to which any of the
property or assets of the Trust Manager is subject, nor
will any such action result in any violation of the
provisions of the Constitution of the Trust Manager or any
applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Trust Manager, or any of its
properties; and no consent, approval, authorization, order,
license, registration or qualification of or with any such
court or governmental agency or body is required for the
issue and sale of the Notes or the consummation by the
Trust Manager of the transactions contemplated by this
Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be
required under state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Notes
by the Underwriters;
(x) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the
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knowledge of the Trust Manager, threatened against or
affecting the Trust Manager or its properties or, to which
the Trust Manager is or may be a party or to which the
Trust Manager or any property of the Trust Manager is or
may be the subject, (a) asserting the invalidity of this
Agreement or of any of the Basic Documents in relation to
the Trust Manager, (b) seeking to prevent the issuance of
the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic
Documents, (c) that may adversely affect the federal or
state income, excise, franchise or similar tax attributes
of the Notes, (d) that could materially and adversely
affect the performance of the Trust Manager of its
obligations under, or the validity or enforceability of,
this Agreement or any of the Basic Documents by the Trust
Manager, or (e) which could individually or in the
aggregate reasonably be expected to have a material adverse
effect on the interests of the holders of the Notes or the
marketability of the Notes;
(xi) the representations and warranties of the Trust Manager
contained in the Basic Documents to which it is a party are
true and correct in all material respects;
(xii) [*] are independent public accountants with respect to the
Trust Manager within the meaning of the Securities Act;
(xiii) the Trust Manager owns, possesses or has obtained all
Authorisations (as defined in the Master Trust Deed),
licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local
and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and
all courts and other tribunals, domestic or foreign,
necessary to perform its obligations under this Agreement
and the Basic Documents, and the Trust Manager has not
received any actual notice of any proceeding relating to
revocation or modification of any such Authorisation,
license, permit, certificate, consent, order, approval or
other authorization; and the Trust Manager is in compliance
with all laws and regulations necessary for the performance
of its obligations under this Agreement and the Basic
Documents;
(xiv) no event has occurred which would entitle the Trust Manager
to direct the Issuer Trustee to retire as trustee of the
Trust under clause 24 of the Master Trust Deed;
(xv) [the Prospectus complies with the Listing Rules of the [*]
Exchange and the Prospectus contains all the information
required by section[*];]
(xvi) the Trust Manager has not taken any corporate action nor
(to the best of its knowledge and belief) have any other
steps been taken or legal proceedings been started or
threatened against the Trust Manager for its winding-up,
dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional
liquidator or similar officer of it or of any or all of its
assets;
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(xvii) subject to compliance with Section 128F of Tax Act and
compliance by the Underwriters with clause 12 of this Agreement,
no stamp or other duty is assessable or payable in, and no
withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for
or on account of any income, registration, transfer or turnover
taxes, customs or other duties or taxes of any kind, levied,
collected, withheld or assessed by or within, the Commonwealth
of Australia or any sub-division of or authority therein or
thereof having power to tax in such jurisdiction, in connection
with the authorization, execution or delivery of the agreements
to which it is to be a party or with the authorization,
execution, issue, sale or delivery of the Notes and the
performance of the Trust Manager's obligations under the
agreements to which it is to be a party and the Notes; and
(xviii) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving
of notice and/or the passage of time and/or the fulfillment of
any other requirement) constitute an Event of Default under the
Security Trust Deed.
(c) Westpac represents and warrants to each Underwriter that:
(i) Westpac is a corporation organized under the laws of New South
Wales, Australia;
(ii) this Agreement has been duly authorized, executed and
delivered by Westpac;
(iii) the representations and warranties of Westpac contained in the
Basic Documents are true and correct in all materialn respects;
(iv) since , (which was the date (Australian Eastern Standard Time) of
the last due diligence call) there has been no material adverse change in the
condition (financial or otherwise), or earnings of Westpac or the Westpac Group;
and
(v) as of the Closing Date, Westpac will have transferred to the Issuer
Trustee a valid equitable assignment of each related Housing Loan offered for
sale by it to the Issuer Trustee.
5. Covenants and Agreements.
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(a) Each Underwriter represents and warrants to and agrees with the Trust
Manager that as of the date hereof and as of the Closing Date, such Underwriter
has complied with all of its obligations hereunder, including, without
limitation, Section ___, and, with respect to all Computational Materials and
ABS Term Sheets provided by such Underwriter to the Trust Manager pursuant to
Section ____, if any, such Computational Materials and ABS Term Sheets are
accurate in all material respects (taking into account the assumptions
explicitly set forth in the Computational Materials or ABS Term Sheets, except
to the extent of any errors therein that are caused by errors in the information
provided by any Westpac Party) and include all
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assumptions material to the preparation thereof. The Computational Materials and
ABS Term Sheets provided by such Underwriter to the Trust Manager constitute a
complete set of all Computational Materials and ABS Term Sheets delivered by
such Underwriter to prospective investors that are required to be filed with the
Commission.
(b) It is understood that each Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term Sheets (each
as defined below) in connection with its offering of the Notes, subject to the
following conditions to be satisfied by such Underwriter:
(i) In connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), as well as the PSA Letter
referred to below. In connection with the use of ABS Term Sheets, such
Underwriter shall comply with all applicable requirements of the No-Action
Letter of February 17, 1995 issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter, the
"No-Action Letters");
(ii) For purposes hereof, "Computational Materials" as used herein
shall have the meaning given such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or delivered
to prospective investors by or at the direction of any Underwriter. For purposes
hereof, "ABS Term Sheets" and "Collateral Term Sheets" as used herein shall have
the meanings given such terms in the PSA Letter but shall include only those ABS
Term Sheets or Collateral Term Sheets that have been prepared or delivered to
prospective investors by or at the direction of any Underwriter;
(iii) (A) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the No-Action
Letters shall bear a legend on each page including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [NAME OF
[APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER OF THE NOTES NOR
ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE
ACCURACY OR COMPLETENESS OF THE INFORMATION HEREIN. THE
INFORMATION HEREIN IS PRELIMINARY AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS AND BY ANY OTHER INFORMATION SUBSEQUENTLY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION."
(B) In the case of Collateral Term Sheets, such legend shall also
include the following statement:
11
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE POOL OF HOUSING LOANS CONTAINED IN THE
PROSPECTUS SUPPLEMENT RELATING TO THE NOTES AND [, EXCEPT WITH
RESPECT TO THE INITIAL COLLATERAL TERM SHEET PREPARED BY THE
UNDERWRITERS,] SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE POOL OF HOUSING LOANS
PREVIOUSLY PROVIDED BY [NAME OF [APPLICABLE] UNDERWRITER]."
Upon reasonable notice the Trust Manager shall have the right to
require additional specific legends or notations to appear on any Computational
Materials or ABS Term Sheets, the right to require changes regarding the use of
terminology and the right to determine the types of information appearing
therein. Notwithstanding the foregoing, subsections (b)(iii)(A) and (b)(iii)(B)
will be satisfied if all Computational Materials and ABS Term Sheets referred to
therein bear a legend in a form previously approved in writing by the Trust
Manager;
(iv) Such Underwriter shall provide the Trust Manager with
representative forms of all Computational Materials and ABS Term Sheets prior to
their first use, to the extent such forms have not previously been approved by
the Trust Manager for use by the Underwriters. Such Underwriter shall provide to
the Trust Manager, for filing on Form 8-K as provided in Section ____, copies
(in such format as required by the Trust Manager) of all Computational Materials
and ABS Term Sheets that are required to be filed with the Commission pursuant
to the No-Action Letters. Such Underwriter may provide copies of the foregoing
in a consolidated or aggregated form including all information required to be
filed. All Computational Materials and ABS Term Sheets described in this
subsection (b) must be provided to the Trust Manager not later than 10:00 a.m.
New York time one Business Day before filing thereof is required pursuant to the
terms of this Agreement. Such Underwriter agrees that it will not provide to any
investor or prospective investor in the Notes any Computational Materials or ABS
Term Sheets on or after the day on which Computational Materials and ABS Term
Sheets are required to be provided to the Trust Manager pursuant to this
subsection (b) (other than copies of Computational Materials or ABS Term Sheets
previously submitted to the Trust Manager in accordance with this subsection
(b)for filing pursuant to subsection (b) (vi) hereof unless such Computational
Materials or ABS Term Sheets are preceded or accompanied by the delivery of a
Prospectus to such investor or prospective investor;
(v) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets delivered by such Underwriter that are required to
be filed were based on assumptions with respect to the pool of mortgages to be
securitized that differ from the final information in relation to the pool of
mortgages to be securitized in any material respect or on
12
Note structuring terms that were revised in any material respect prior to the
printing of the Prospectus, such Underwriter shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based on the final information
with respect to the securitized pool of housing loansand final structuring
assumptions, circulate such revised Computational Materials and ABS Term Sheets
to all recipients of the preliminary versions thereof that indicated orally to
such Underwriter they would purchase all or any portion of the Notes, and
include such revised Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Trust Manager pursuant to subsection
(d) above;
(vi) The Trust Manager shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to contain
any material error or omission, provided that, at the request of the applicable
Underwriter, the Trust Manager will file Computational Materials or ABS Term
Sheets that contain a material error or omission if clearly marked "superseded
by materials dated _________" and accompanied by corrected Computational
Materials or ABS Term Sheets that are marked "material previously dated , as
corrected." In the event that within the period during which the Prospectus
relating to the Notes is required to be delivered under the Act, any
Computational Materials or ABS Term Sheets delivered by an Underwriter are
determined, in the reasonable judgment of the Trust Manager or such Underwriter,
to contain a material error or omission, such Underwriter shall prepare a
corrected version of such Computational Materials or ABS Term Sheets, shall
circulate such corrected Computational Materials and ABS Term Sheets to all
recipients of the prior versions thereof that either indicated orally to such
Underwriter they would purchase all or any portion of the Notes, or actually
purchased all or any portion thereof, and shall deliver copies of such corrected
Computational Materials and ABS Term Sheets (marked, "as corrected") to the
Trust Manager for filing with the Commission in a subsequent Form 8-K submission
(subject to the Trust Manager's obtaining an accountant's comfort letter in
respect of such corrected Computational Materials and ABS Term Sheets);
(vii) If an Underwriter does not provide any Computational Materials
or ABS Term Sheets to the Trust Manager pursuant to this subsection (b), such
Underwriter shall be deemed to have represented, as of the Closing Date, that it
did not provide any prospective investors with any information in written or
electronic form in connection with the offering of the Notes that is required to
be filed with the Commission in accordance with the No-Action Letters, and such
Underwriter shall provide the Trust Manager;
(viii) In the event of any delay in the delivery by such Underwriter to
the Trust Manager of all Computational Materials and ABS Term Sheets required to
be delivered in accordance with this subsection (b), or in the delivery of the
accountant's comfort letter in respect thereof pursuant to subsection (b) (vi)
above the Trust Manager shall have the right to delay the release of the
Prospectus to investors or to the Underwriters, to delay the Closing Date and to
take other appropriate actions, in each case as necessary in order to allow the
Trust Manager to comply with its agreement set forth in subsection (b) (vi)
hereof to file the Computational Materials and ABS Term Sheets by the time
specified therein;
(ix) Each Underwriter represents that it has in place, and covenants
that it shall maintain internal controls and procedures which it reasonably
believes to be sufficient to ensure
13
full compliance with all applicable legal requirements of the No-Action Letters
with respect to the generation and use of Computational Materials and ABS Term
Sheets in connection with the offering of the Notes; and
(x) [Notwithstanding anything herein to the contrary, for purposes
of this Agreement, neither the Preliminary Diskette nor the Diskette shall be
deemed to be Computational Materials or ABS Term Sheets.]
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS Terms
Sheets prior to the date hereof in connection with the offering of the Notes,
all of the conditions set forth in clauses (i) through (viii) above have been
or, to the extent the relevant condition requires action to be taken after the
date hereof, will be, satisfied with respect thereto.
(c) The Trust Manager covenants and agrees with each of the several
underwriters as follows:
(i) To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the time required thereby; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior to the
Closing Date except as permitted herein; to advise the Underwriters, promptly
after it receives notice thereof, of the time, during the period that a
Prospectus is required to be delivered in connection with the offer and sale of
the Notes, when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish the Underwriters with copies thereof; to file
promptly all reports or definitive proxy or information statements required to
be filed by the Trust Manager with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and, for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Notes, to promptly advise the Underwriters of its
receipt of notice of the issuance by the Commission of any stop order or of: (a)
any order preventing or suspending the use of the Prospectus with respect to the
Notes; (b) the suspension of the qualification of the Notes for offering or sale
in any jurisdiction; (c) the initiation of or threat of any proceeding for any
such purpose; (d) any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information. In the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus or suspending any such
qualification, the Trust Manager promptly shall use its best efforts to obtain
the withdrawal of such order by the Commission;
(ii) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, including all consents and exhibits filed therewith;
(iii) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (a) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case including exhibits); (b) the Prospectus and
any amended or supplemented Prospectus; and (c) any document filed by the Trust
Manager and incorporated by reference in the Prospectus (including
14
exhibits thereto). If the delivery of a prospectus is required at any time prior
to the expiration of nine months after the Effective Time in connection with the
offering or sale of the Notes, and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, the Trust Manager shall notify the
Underwriters and, upon the request of the Underwriters, shall file such document
and prepare and furnish without charge to the Underwriters and provide as many
copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the Underwriters
are required to deliver a Prospectus in connection with sales of any of the
Notes at any time nine months or more after the Closing Date, upon the request
and expense of the Underwriters, the Trust Manager shall prepare and deliver to
the Underwriters as many copies as the Underwriters may reasonably request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the
Securities Act. Neither the Underwriters' consent nor the Underwriters' delivery
of any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 of this agreement;
(iv) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Trust Manager or the Underwriters,
be required by the Securities Act or requested by the Commission;
(v) Prior to filing with the Commission any (a) supplement to the
Prospectus or (b) Prospectus pursuant to Rule 424 of the Rules and Regulations,
to furnish a copy thereof to the Underwriters and counsel for the Underwriters
and obtain the consent of the Underwriters to the filing, which consent shall
not be reasonably upheld;
(vi) To use its best efforts, in cooperation with the Underwriters,
to qualify the Notes for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as the Underwriters
and Trust Manager may agree, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided that the Trust Manager shall not be required to become
--------
subject to any general consent to service of process or jurisdiction in any
jurisdiction in which it is not subject as of the date of this Agreement. The
Trust Manager will file or cause the filing of such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been so
qualified;
(vii) to make generally available to the holders of the Notes and to
the Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of the
Trust occurring after the effective date of the Registration Statement, which
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
of the Commission promulgated thereunder;
15
(viii) so long as the Notes are outstanding, to furnish to the
Representatives (a) copies of each certificate, the annual statements of
compliance and the annual independent certified public accountant's audit report
on the financial statements furnished to the Trustee pursuant to the Basic
Documents by first class mail as soon as practicable after such statements and
reports are furnished to the Trustee, (b) copies of each amendment to any of the
Basic Documents, (c) on each Determination Date or as soon thereafter as
practicable, the Bond Factor as of the related Record Date shall be available to
the Representatives on [Bloomberg and Reuters], (d) copies of all reports or
other communications (financial or other) furnished to holders of the Notes, and
copies of any reports and financial statements furnished to or filed with the
Commission, any governmental or regulatory authority or any national securities
exchange and (e) from time to time such other information concerning the Trust
or the Trust Manager as the Representatives may reasonably request;
(ix) to the extent, if any, that the ratings provided with respect to
the Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by the Trust Manager, the Trust
Manager shall use its best efforts to furnish such documents and take any other
such action;
(x) [to list the Notes on the [*] Exchange and to use its best
efforts to maintain such listing for as long as any of the Notes are
outstanding; provided, however, if such listing becomes impossible, each of the
Issuer Trustee and the Trust Manager will use their best efforts to obtain, and
will thereafter use its best efforts to maintain a quotation for, or listing of,
the Notes on such other exchange as is commonly used for the quotation or
listing of debt securities as they may, with the approval of the
Representatives, decide;]
(xi) [to furnish from time to time copies of the Prospectus and any
and all documents, instruments, information and undertakings (in addition to any
already published or lodged with the [*] Exchange) and publish all
advertisements or other material and to comply with any other requirements of
the [*];]
(xii) to assist the Representatives to make arrangements with DTC, the
Euroclear system ("Euroclear"), [Austraclear] and Clearstream Banking, Societe
Anonyme (formerly Cedelbank) ("Clearstream Luxembourg") concerning the issue of
the Notes and related matters; and
(xiii) to not take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to believe
would result in the Notes not being assigned the ratings referred to in Section
6(n) below.
(d) [The Trust Manager shall file the Computational Materials and ABS Term
Sheets (if any) provided to it by the Underwriters under subsection (b) (vi)
hereof with the Commission pursuant to a Current Report on Form 8-K by 10:00
a.m. on the morning the Prospectus is delivered to the Underwriters or, in the
case of any Collateral Term Sheet required to be filed prior to such date, by
10:00 a.m. on the second Business Day following the first day on which such
Collateral Term Sheet has been sent to a prospective investor; provided,
however, that prior to such filing of the Computational Materials and ABS Term
Sheets (other than any Collateral
16
Term Sheets that are not based on the Pool Information) by the Trust Manager,
each Underwriter must comply with its obligations pursuant to subsection (b)
(vi) hereof and the Trust Manager must receive a letter from
____________________., certified public accountants, satisfactory in form and
substance to the Trust Manager and its counsel, to the effect that such
accountants have performed certain specified procedures, all of which have been
agreed to by the Trust Manager, as a result of which they determined that all
information that is included in the Computational Materials and ABS Term Sheets
(if any) provided by the Underwriters to the Trust Manager for filing on Form
8-K, as provided in subsection (b) (vi) hereof and this subsection (b) (vi)
hereof, is accurate except as to such matters that are not deemed by the Trust
Manager to be material. The Trust Manager shall file any corrected Computational
Materials described in Section ____(f) as soon as practicable following receipt
thereof. The Trust Manager also will file with the Commission within fifteen
days of the issuance of the Certificates a Current Report on Form 8-K (for
purposes of filing the Basic Documents).]
(e) The Issuer Trustee covenants and agrees with each of the Westpac
Parties and each of the several Underwriters as follows:
(i) to use the net proceeds received by the Issuer Trustee from the
sale of the Notes pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds;"
(ii) the Issuer Trustee will notify the Representatives promptly
after it becomes actually aware of any matter which would make any of its
representations, warranties, agreements and indemnities herein untrue if given
at any time prior to payment being made to the Issuer Trustee on the Closing
Date and take such steps as may be reasonably requested by the Representatives
to remedy and/or publicize the same;
(iii) the Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, the
Agreements or in connection with the issue and distribution of the Notes or the
enforcement or delivery of this Agreement;
(iv) the Issuer Trustee will use all reasonable endeavors to procure
satisfaction on or before the Closing Date of the conditions referred to in
Section 6 below and, in particular (a) the Issuer Trustee shall execute those of
the Basic Documents not executed on the date hereof on or before the Closing
Date, and (b) the Issuer Trustee will assist the Representatives to make
arrangements with DTC, [Austroclear] [Euroclear and Cedelbank] concerning the
issue of the Notes and related matters;
(v) the Issuer Trustee will procure that the charges created by or
contained in the Security Trust Deed are registered within all applicable time
limits in all appropriate registers;
(vi) the Issuer Trustee will perform all its obligations under each
of the Basic Documents to which it is a party which are required to be performed
prior to or simultaneously with closing on the Closing Date; and
17
(vii) the Issuer Trustee will not take, or cause to be taken, any
action and will not knowingly permit any action to be taken which it knows or
has reason to believe would result in the Notes not being assigned the ratings
referred to in Section (d)(xiii) below; and the Issuer Trustee will not prior to
or on the Closing Date amend the terms of any Basic Document nor execute any of
the Basic Documents other than in the agreed form without the consent of the
parties hereto.
(f) Westpac covenants and agrees with each of the several Underwriters that
whether or not the transactions contemplated in this Agreement are consummated
or this Agreement is terminated, all fees, costs and expenses incident to the
performance of its obligations hereunder, including commissions payable, in
immediately available funds to the Underwriters for the performance of their
obligations under this Agreement, shall be paid as set forth in a letter (the
"Fee Letter") dated as of[ ] among Westpac and the Representatives.
6. Conditions to the Obligations of the Underwriters.
-------------------------------------------------
The several obligations of the Underwriters hereunder are subject to
the performance by the Westpac Parties and the Issuer Trustee of their
obligations hereunder and to the following additional conditions:
(i) the Underwriters shall have received confirmation of the
effectiveness of the Registration statement and that no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and the Prospectus shall have been filed with the
Commission pursuant to Rule 424 (b) under the Act Any request of the Commission
for inclusion of additional information in the Registration Statement or the
Prospectus shall have been complied with;
(ii) the representations and warranties of the Westpac Parties and
the Issuer Trustee contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the representations
and warranties of the Westpac Parties in the Basic Documents will be true and
correct on the Closing Date; and each Westpac Party and the Issuer Trustee shall
have complied with all agreements and all conditions on its part to be performed
or satisfied hereunder and under the Basic Documents to which each is party, at
or prior to the Closing Date;
(iii) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading of the
long-term debt of Westpac;
(iv) since the respective dates as of which information is given in
the Prospectus there shall not have been any material adverse change in or
affecting the condition (financial or otherwise), earnings, general affairs,
business, prospects, management, financial position, stockholders' equity or
results of operations of the Westpac Parties, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Notes on the Closing Date on the
terms and in the manner contemplated in the Prospectus;
18
(v) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of each Westpac Party, with specific
knowledge about financial matters of such Westpac Party, satisfactory to the
Representatives to the effect set forth in subsections 6(ii) through (iv);
(vi) Allens Xxxxxx Xxxxxxxx ,Australian counsel for Westpac, the
Trust Manager and the Servicer, shall have furnished to the Representatives
their written opinion (covering inter alia Australian tax matters), dated the
Closing Date, in form and substance satisfactory to the Representatives, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters; on the date hereof
and also on the Closing Date, each of [*] shall have furnished to the
Underwriters letters, dated the respective dates of delivery thereof, in form
and substance satisfactory to the Underwriters;
(vii) the Representatives shall have received on and as of the Closing
Date an opinion of [Sidley Xxxxxx Xxxxx & Xxxx llp], counsel to the
Underwriters, with respect to the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(viii) [Xxxxx Xxxxx & Xxxxx], United States counsel for Westpac, the
Issuer Trustee and the Trust Manager, shall have furnished to the
Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(ix) [Xxxxx Xxxxx & Xxxxx], United States federal income tax counsel
for Westpac, the Issuer Trustee and the Trust Manager, shall have furnished to
the Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives;
(x) [*], counsel for the Issuer Trustee, shall have furnished to the
Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(xi) [*], counsel for the Note Trustee, shall have furnished to the
Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(xii) Counsel to the Interest Rate Swap Provider and Currency Swap
Providers shall have furnished to the Representatives their written opinion and
substance satisfactory to the Representatives; the Representative shall have
received a letter or letters from each counsel delivering any written opinion to
any Rating Agency in connection with the transaction
19
described herein which is not otherwise described in this Agreement allowing the
Representative to rely on such opinion as if it were addressed to the
Representative;
(xiii) at the Closing Date, the Class [*]Notes shall have been rated
["AAA" by Standard & Poor's Ratings Services, A Division of The XxXxxx-Xxxx
Companies, Inc. ("Standard and Poor's") and "Aaa" by Xxxxx'x Investors Service,
Inc. ("Moody's" and together with Standard and Poor's the "Rating Agencies"] as
evidenced by letters from the Rating Agencies;
(xiv) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date;
[(xv) the [*]Exchange shall have agreed on or prior to the Closing
Date to list the Notes]; and
(xvi) on or prior to the Closing Date the Westpac Parties and the
Issuer Trustee shall have furnished to the Representatives such further
certificates and documents as the Representatives may reasonably
request.
7. Indemnification and Contribution.
--------------------------------
(a) Each of Westpac and the Trust Manager, jointly and severally, agrees to
indemnify and hold harmless each Underwriter, each affiliate of an Underwriter
which assists such Underwriter in the distribution of the Securities, and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
(collectively the "Underwriter Parties") from and against any and all losses,
claims, damages and liabilities (including, without limitation, the legal fees
and other expenses incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or in the Prospectus
(as amended and supplemented if the Trust Manager shall have furnished any
amendments or supplements thereto) (other than to the extent any losses, claims,
damages or liabilities arise as a result of any information under the heading
["Prepayment and Yield Considerations"]), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except (i) insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Trust
Manager in writing by such Underwriter through the Representatives expressly for
use therein or (ii) that such indemnity with respect to the Prospectus shall not
inure to the benefit of any Underwriter Party from whom the person asserting any
such loss, claim, damage or liability purchased the Notes which are the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as amended or supplemented) at or prior to the confirmation of the
sale of such Notes to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in
such Prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented); and (iii) Westpac and the Trust Manager will not be liable in any
case to the extent that any such loss, claim, damage or liability arises out of
or is
20
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein relating to any information included in
Computational Materials or ABS Term Sheets that have been superseded by revised
Computational Materials or ABS Terms Sheets if such Underwriter has not complied
with its obligation to circulate revised Computational Materials and ABS Terms
Sheets in accordance with Section 5(b) or has not delivered them to the Trust
Manager no later than one (1) Business Day after delivery to investors provided
that the Westpac Parties shall indemnify each underwriter to the extent any
misstatement or omission is in information provided by a Westpac Party to the
Underwriters.
(b) To the extent that any payment of damages by Westpac pursuant to subsection
7(a) above is determined to be a payment of damages pursuant to "Guidance Note
AGN 120.3 - Purchase and Supply of Assets (including Securities Isued by SPVs)",
such payment shall be subject to the conditions specified in Paragraph 15
therein. Westpac shall not be liable to make a payment of damages pursuant to
subsection 7(a) above where such payment is required to be approved by the
Australian Prudential Regulation Authority and that approval has been refused.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Trust Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and Westpac and each person who
controls any of the Westpac Parties or the Issuer Trustee within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Westpac Parties to each Underwriter,
but only with reference to information relating to (i) the ["Plan of
Distribution"] section in the Prospectus furnished to the Trust Manager in
writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus, or any amendment or supplement thereto
and (ii) the Computational Materials and ABS Term Sheets delivered to investors
by such Underwriter, except to the extent of any errors in the Computational
Materials or ABS Term Sheets [or to the extent applicable: Term Sheet Diskettes]
that are caused by errorsin any computer tape (or other information) furnished
to any Underwriter by or on behalf of the Westpac Parties concerning the assets
of the trust.
(d) If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to Subsections (a) or (b)
above, such person (the "Indemnified Person") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
21
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters, each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Notes, and
such control persons of Underwriters shall be designated in writing by the
Representatives and any such separate firm for the Trust Manager, its directors,
its officers who sign the Registration Statement, and Westpac and such control
persons of any of the Westpac Parties shall be designated in writing by the
Trust Manager. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this subsection (c), the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (a) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (b) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(e) If the indemnification provided for in subsections (a) or (b) above is
unavailable to an Indemnified Person in respect of any losses, claims, damages
or liabilities referred to therein, then each Indemnifying Person under such
subsection, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative benefits received by the Westpac Parties and
the Issuer Trustee on the one hand and the Underwriters on the other hand from
the offering of the Notes and also the relative fault of the Westpac Parties and
the Issuer Trustee on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Westpac Parties and the
Issuer Trustee on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
received by the Westpac Parties and the Issuer Trustee and the total
underwriting discounts and the commissions received by the Underwriters bear to
the aggregate public offering price of the Notes. The relative fault of the
Westpac Parties and the Issuer Trustee on the one hand and the Underwriters on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Westpac
Parties or the Issuer Trustee or by the Underwriters and the parties' relative
intent,
22
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(f) The Westpac Parties, the Issuer Trustee and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in this
subsection (d) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Notes set forth opposite their names in Schedule
I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(g) The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Westpac Parties, the Issuer
Trustee and Underwriters set forth in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Westpac Parties or the
Issuer Trustee, its officers or directors or any other person controlling the
Westpac Parties or the Issuer Trustee and (iii) acceptance of and payment for
any of the Notes.
8. Termination.
-----------
Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Trust Manager, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, (ii) trading of any securities of or guaranteed by any of the Westpac
Parties or the Issuer Trustee shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York, Sydney, Australia or [London, England] shall have been
declared by either Federal or New York or related authorities, or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representatives, is
23
material and adverse and which, in the judgment of the Representatives, makes it
impracticable to market the Notes on the terms and in the manner contemplated in
the Prospectus.
9. Default of Underwriters.
-----------------------
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Notes which it or they have agreed to purchase hereunder
on such date, and the aggregate principal amount of Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Notes to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Notes set forth opposite their
respective names in Schedule I bears to the aggregate principal amount of Notes
set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representatives may specify, to purchase the Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the principal amount
of Notes that any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
principal amount of Notes without the written consent of such Underwriter. If on
the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Notes which it or they have agreed to purchase hereunder on such date,
and the aggregate principal amount of Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Notes to be
purchased on such date, and arrangements satisfactory to the Representatives and
the Trust Manager for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Trust Manager. In any such case either
you or the Trust Manager shall have the right to postpone the Closing Date, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. Expenses Upon Termination.
-------------------------
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Westpac Parties or
the Issuer Trustee to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason any of the Westpac Parties or the Issuer
Trustee shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, Westpac agrees
to reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder as set forth in the Fee Letter.
11. Fee Letter.
-----------
Notwithstanding any term or provision herein in relation to fees and
expenses, any obligation of reimbursement of such fees or expenses by a Westpac
Party shall be subject to, and
24
where applicable, superceded by, the terms and provisions of the Fee Letter,
(attached as Exhibit 1 hereto) executed by [*] and Westpac.
12. Selling Restrictions.
--------------------
(a) No prospectus or other disclosure document in relation to the Notes has
been lodged with, or registered by, the Australian Securities and Investment
Commission or the Australian Stock Exchange Limited. Each Underwriter represents
and agrees that in connection with the initial distribution of the Notes:
(i) it has not (directly or indirectly) offered for subscription or
purchase or issued invitations to subscribe for or buy nor has it sold, the
Notes,
(ii) will not (directly or indirectly) offer for subscription or
purchase or issue invitations to subscribe for or buy nor will it sell the
Notes,
(iii) has not distributed and will not distribute any draft or
definitive offering memorandum or prospectus, or any advertisement or other
offering material;
in the Commonwealth of Australia, its territories or possessions ("Australia");
unless:
(A) the written consent of the Trust Manager has been obtained
and,
(B) the amount payable on acceptance of the offer for the
Notes by each offeree or invitee is a minimum amount of A$500,000 (or
its equivalent in other currency) (disregarding amounts, if any, lent
by the Issuer Trustee or other person offering the Note or an associate
of either of them) or the offer or invitation is otherwise an offer or
invitation for which no disclosure is required to be made under Part
6D.2 of the Corporations Law and the Corporations Regulations made
under the Corporations Law;
(C) the offer, invitation or distribution complies with all
applicable laws, regulations and directives and does not require any
document to be lodged with the Australian Securities and Investments
Commission; and
(D) the Notes will not be acquired by an associate of [Westpac]
within the meaning of s128F of the Tax Act (other than in the capacity
of an underwriter in relation to a placement of the Note) as identified
on a list provided by Westpac.
In addition, each Underwriter has agreed that, in connection
with the primary distribution of any Notes, it will not sell any Notes to any
person if, at the time of such sale, the employees of the underwriter aware of,
or involved in, the sale knew or had reasonable grounds to suspect that, as a
result of such sale, such Notes or an interest in such Notes were being, or
would later be, acquired (directly or indirectly) by an associate of the Issuer
Trustee for the purposes of s128F(9) of the Tax Act (other than in the capacity
of a dealer, underwriter or manager in relation to the placement of the Notes).
25
(b) Each Underwriter (severally, not jointly) undertakes to offer,
within 30 days of issue, the Notes goverened by this Agreement, in one or more
of the ways covered by any of paragraphs (a) to (d) of Section 128F(3) of the
Tax Act,
and in any case it has announced on behalf of the Issuer
Trustee in relation to the offer that Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear") or
Clearstream Luxembourg will confer rights in the Notes under Book-Entry Notes.
Each Underwriter will provide the Issuer Trustee (within five Business Days of
the offer of Notes by it) a written statement which sets out details of the
relevant offer.
(c) Each Underwriter (severally, not jointly) agrees to co-operate
with reasonable requests from the Issuer Trustee for information for the
purposes of assisting the Issuer Trustee to demonstrate that the public offer
test under section 128F of the Tax Act has been satisfied, provided that no
Underwriter shall be obliged to disclose the identity of the purchaser of any
Note or any information from which such identity might/would be capable of being
ascertained, or any information the disclosure of which would be contrary to or
prohibited by any relevant law, regulation or directive; and
(d) Each Underwriter acknowledges that no representation is made by
the Issuer Trustee or any Underwriter that any action has been or will be taken
in any jurisdiction by the Issuer Trustee or any Underwriter that would permit a
public offering of the Notes, or possession or distribution of the Prospectus or
any other offering material, in any country or jurisdiction where action for
that purpose is required. Each Underwriter will comply with all applicable
securities laws and regulations in each jurisdiction in which it purchases,
offers, sell or delivers Notes or has in its possession or distributes the
Prospectus or any other offering material, in all cases at its own expense.
13. Certain Matters Relating to the Issuer Trustee.
----------------------------------------------
The Issuer Trustee enters into this Agreement only in its capacity as
trustee of the Trust and in no other capacity. A liability arising under or in
connection with this Agreement or the Trust can be enforced against the Issuer
Trustee only to the extent to which it can be satisfied out of assets of the
Trust out of which the Issuer Trustee is actually indemnified for such
liability. This limitation of the Issuer Trustee's liability applies despite any
other provisions of this Agreement and extends to all liabilities and
obligations of the Issuer Trustee in any way connected with any representation,
warranty, conduct, omission, agreement or Transaction related to this Agreement
or the Trust.
The parties other than the Issuer Trustee may not xxx the Issuer
Trustee in any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust Deed) or a
liquidator, an administrator or any other similar person to the Issuer Trustee
or prove in any liquidation, administration or arrangements of or affecting the
Issuer Trustee.
The provisions of this clause 13 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied because
under the Master Trust Deed or by operation
26
of law there is a reduction in the extent of the Issuer Trustee's
indemnification out of the assets of the Trust as a result of the Issuer
Trustee's fraud, negligence or breach of trust.
It is acknowledged that the [Trust Manager, the Servicer, the Currency
Swap Providers, the Note Trustee, the Principal Paying Agent, the other Paying
Agents and the Agent Bank] (each, a "Relevant Party") are responsible under the
Transaction Documents (as defined in the Master Trust Deed) for performing a
variety of obligations relating to the Trust. No act or omission of the Issuer
Trustee (including any related failure to satisfy its obligations under the
Transaction Documents) will be considered fraud, negligence or breach of trust
of the Issuer Trustee for the purpose of this Agreement to the extent to which
the act or omission was caused or contributed to by any failure by any Relevant
Party or any other person who provides services in respect of the Trust (other
than a person who has been delegated or appointed by the Issuer Trustee and for
whom the Issuer Trustee is responsible under the relevant Transaction Document,
but excluding any Relevant Party) to fulfil its obligations relating to the
Trust or by any other act or omission of a Relevant Party or by any other person
who provides services in respect of the Issuer Trustee (other than a person who
has been delegated or appointed by the Issuer Trustee and for whom the Issuer
Trustee is responsible under the Transaction Documents, but excluding any
Relevant Party).
14. Successors.
----------
This Agreement shall inure to the benefit of and be binding upon the
Westpac Parties, the Issuer Trustee, the Underwriters, each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Notes, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Notes from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
15. Actions by Representatives; Notices.
-----------------------------------
Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by [*] alone on behalf of the Underwriters, and any
such action taken by the Representatives jointly or by [*] alone shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representatives[*]. Notices to the Trust
Manager shall be given to it at c/o Westpac Banking Corporation, 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Facsimile No. 212-682-0587),
Attention: [.], with a copy to Xxxxx 0, 00 Xxxxxx Xxxxx, Xxxxxx, XXX 0000,
Attention: [Senior Manager, Securitisation]; to the Issuer Trustee shall be
given to it at c/o Westpac Banking Corporation, 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (Facsimile No. 212-682-0587), Attention: [], with a
copy to Xxxxx 0, 00 Xxxx Xxxxxx, Xxxxxx, XXX 0000, Xxxxxxxxx, Attention: [*];
and to Westpac shall be given to it at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (Facsimile No. 212-682-0587), Attention: [.]
16. Counterparts: Applicable Law.
----------------------------
27
This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the conflicts of laws provisions
thereof.
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof.
Very truly yours,
WESTPAC SECURITISATION MANAGEMENT
PTY LIMITED
By: ______________________________
Name:
Title:
WESTPAC SECURITIES ADMINISTRATION
LIMITED
By:______________________________
Name:
Title:
WESTPAC BANKING CORPORATION
By:______________________________
Name:
Title:
28
Accepted: [*]
[*]
Acting severally on behalf of themselves and the several Underwriters listed in
Schedule I hereto.
[*]
By: ______________________________
Name:
Title:
[*]
By: ______________________________
Name:
Title:
29
SCHEDULE I
----------
Underwriter PRINCIPAL AMOUNT OF CLASS [*]
----------- NOTES TO BE PURCHASED
-----------------------------
TO BE ANNOUNCED
EXHIBIT I
---------
Underwriters' Fee Letter
